Court Records Indicate Federal Judges and Prosecutors Conspired to Unconstitutionally Convict and Imprison Defendants
Denver, CO -- (ReleaseWire) -- 11/22/2019 --Federal prosecutors boast a 98% conviction rate not because they are that good, but because (1) they cheat, and (2) many federal judges (most of whom are former prosecutors) are their friends and will protect them at any cost, even if that means violating the 5th and 6th Amendments of the Constitution and a federal statute to unconstitutionally convict and imprison innocent defendants as court records show federal judges and prosecutors did in the IRP6 case (Dist. of Colo. no. 09-cr-00266-CMA). The trial judge in the IRP6 case was Christine M. Arguello, the 10th Circuit appellate court judges were Bobby Baldock, Harris Hartz and Jerome Holmes and federal prosecutors were former Colorado U.S. Attorney John Walsh and his underlings, current Assistant U.S. Attorneys Matthew T. Kirsch and Suneeta Hazra. The officials didn't just behave badly, their conduct was an abomination in the American justice system.
5th Amendment Violation and Mysterious Disappearance of Transcript to Cover Unlawful Conduct
Trial records show the government rested its case a week and a half early, which left the pro se IRP6 scrambling to get their witnesses (many of whom were out-of-state) scheduled to testify. Judge Arguello became frustrated after a subpoenaed in-state law enforcement witness failed to appear. Instead of assisting the IRP6 to get the witness to the courthouse, Judge Arguello became frustrated and called the IRP6 to a sidebar to chastise them for not having a witness available. The IRP6 assert that during the sidebar where two prosecutors were present, an irascible Judge Arguello compelled them to testify in violation of the 5th Amendment by telling them that "if their witnesses were not immediately available that one of them would have to testify or she would rest their case." The six defendants huddled together in frustration and disillusionment to discuss which one of them would have to testify to keep their defense alive. During cross-examination, the defendants became more frustrated that Judge Arguello had forced them to testify, prompting one of them to object and take the 5th Amendment on behalf of the codefendant on the stand. The angry Judge Arguello immediately dismissed the jury and all six defendants made it known to Judge Arguello that she had forced them to testify during the sidebar.
Judge Arguello immediately denied compelling them to testify while admitting she didn't remember exactly what she said. The IRP6 contemporaneously requested to see the sidebar transcript to resolve the dispute. Judge Arguello refused to tell the court reporter to read back the sidebar and claimed she would give it to the defendants but never did. The IRP6 continued asking for the transcript during and after trial only to receive prevarications from Judge Arguello, the court reporter (Darlene Martinez) and the district court clerk's office. The critical portion of the transcript mysteriously vanished, making it impossible for the IRP6 to appeal the 5th Amendment violation. It bears noting that both prosecutors who were present at the sidebar remained silent when they could've resolved the dispute. It was these events that prompted advocacy organization A Just Cause to file a lawsuit against the court reporter on behalf of the IRP6 to try and obtain the unedited version of transcript which the court reporter is required by law to keep on file in the clerk's office for 10 years.
Both federal judge R. Brooke Jackson (District of Colorado) and former federal appeals judge H. Lee Sarokin (Retired, U.S. 3rd Circuit Court of Appeals) reviewed and analyzed the facts and evidence surrounding the 5th Amendment violation and the missing transcript. Each judge issued damning revelations implicating misconduct by Judge Arguello, AUSA's Kirsch and Hazra or all of them. Sarokin also discussed the 10th Circuit's responsibilities under the law based on the facts of the case. Advocacy organization A Just Cause (AJC) also filed judicial complaints against Arguello, Baldock, Hartz and Holmes but because of cronyism they were dismissed irrespective of the irrefutable proof of wrongdoing. AJC also filed a lawsuit against the court reporter to obtain the transcript which resulted in a detailed opinion written by Judge Jackson (A Just Cause v. United States, 45 F. Supp. 3d 1258 (USDC, Dist. Colo., 2014)).
Judge Jackson's Findings
After reviewing the transcripts, Judge Jackson stated, "it is undisputed that Judge Arguello said something that does not appear in the transcript--either the unedited or final version." Judge Arguello "offered no explanation as to why one of her statements were not recorded," added Jackson. As part of an appeal settlement process, the IRP6 asked tJudge Arguello to admit to their version of what she said. But Judge Arguello balked and rejected the request and made an absurd statement that proved she had been untruthful and was covering up about compelling the IRP6 defendants to testify.
"For whatever reason," said Judge Arguello, "whether the parties spoke too far from the microphone or the court reporter took off her headphones, the court reporter did not hear everything that was said at the sidebar and therefore did not transcribe anything besides what is contained in the edited transcript," added Arguello.
"It's obvious from this statement that Judge Arguello is weaving a tangled web of deceit to cover-up her corrupt act," says IRP6 defendant David Banks. "How did the court reporter start recording the sidebar, take off her headphones and stop doing her job of transcribing just long enough to not hear Judge Arguello compel us to testify, then put her headphones back on and continue recording the rest of the sidebar," adds Banks. "Furthermore, if the court reporter couldn't hear Judge Arguello, why didn't she say so as court records show she did numerous times for parties during the trial," says Banks. "Additionally, Judge Arguello asserts that 'the parties' may have spoken too far from the microphone when the only party whose statements are missing from the transcript is hers," says Banks.
The now not so mysterious disappearance of the transcript resulted in: (1) the alleged 5th Amendment violation being unresolved, (2) the government's case undamaged, (3) Judge Arguello's reputation intact, and (4) the IRP6 out in the cold without a sufficient record to prove or appeal the alleged constitutional violation. Kirsch and Arguello unconstitutionally convicted and imprisoned the IRP6 and attempted to cover it up. You would expect that the 10th Circuit would follow the plain, unambiguous language of precedent established in their circuit based on the Constitution and the Supreme Court, but that didn't happen.
The Constitution and Governing Law
1) The Fifth Amendment of the United States, states that: "No person...shall be compelled in any criminal case to be a witness against himself."
2) In the 1971 case of Mayer v. Chicago, the Supreme Court of the United States (SCOTUS) states: an "appellant cannot be denied a record of sufficient completeness to permit proper consideration of his claims" and that "prejudicial [prosecutorial or judicial] misconduct cannot be fairly judged without a verbatim transcript."
3) In obeying the Supreme Court, the 10th Circuit stated that a case must be reversed or overturned: "When the unavailability of a transcript makes it impossible for [them] to determine whether or not prejudicial error was committed" by a prosecutor or judge.
On his Huffington Post blog, Judge Sarokin discussed ten (10) "uncontested facts" from the record that showed Judge Arguello violated the IRP6's Fifth Amendment rights (http://www.huffingtonpost.com/judge-h-lee-sarokin/the-case-of-the-missing-t_1_b_5340397.html). "With all the uncontroverted evidence, the [10th Circuit] certainly has enough evidence to conclude the right against self-incrimination indeed was violated by [Judge Arguello]; that defendants reasonably believed that at least one of them was required to testify in order to have their defense remain open; and that they succumbed to that threat, and immediately voiced their objections," Sarokin blogged. The failure of the federal prosecutors Kirsch and Hazra to defend Judge Arguello or the truth by providing an affidavit or testimony of what they recall being said by Judge Arguello "speaks volumes," said Sarokin. Prosecutors are ethically and lawfully bound to seek the truth, not and unfair advantage through silence to win at any cost," says Banks (IRP6).
Instead of following well-settled law and reversing the wrongful conviction on 5th Amendment grounds, 10th Circuit judges Baldock, Hartz and Holmes decided to protect Arguello and Kirsch and cheat the IRP6. Without a transcript, and proceeding upon the assumption that Judge Arguello made the coercive statement alleged by the IRP6, Baldock, Hartz and Holmes miraculously read the mind of Judge Arguello and determined exactly what she meant by the coercive statement she denied making--that being that Judge Arguello meant for the defendants to call the FBI agent sitting at the government's table to testify and that the IRP6's failure to do so meant they voluntarily testified. There is nothing in the trial record where Judge Arguello tells the defendants to call the FBI agent.
"How could the 10th Circuit possibly know what Judge Arguello was thinking from a statement she denied making? And how did they read our minds to determine how we perceived and reacted to a statement Judge Arguello denied making but we said she made," adds Banks (IRP6). "If Judge Arguello wanted us to call the FBI agent, wouldn't she have communicated that to us?" asks Banks (IRP6). "After our repeated complaints about being forced to testify, AUSA Kirsch implicitly admitted Judge Arguello compelled us to testify when he did some Monday morning quarterbacking by suggesting to Judge Arguello that we could've called the FBI agent instead testifying," says Banks. Judge Sarokin also blogged that trial records showed Kirsch implicitly admitted he'd heard Judge Arguello make coercive statements during the sidebar when he "wanted clarification that the defendants were going to testify in any event despite the problem producing witnesses." "The 10th Circuit cheated us by disregarding the law and Constitution and using clairvoyance to read minds and Kirsch's self-serving suggestion to affirm our unconstitutional conviction and continue our unlawful imprisonment. These are cruel people," concludes Banks (IRP6).
The duplicitous acts surrounding the disappearance of the transcript saddened and disturbed Judge Sarokin, who, after digging deeper into the case, found that the IRP6 were innocent. Sarokin told the Washington Post that the IRP6 (some of whom are military veterans) were "indicted and imprisoned for not paying their [corporate] bills" associated with developing criminal investigations software after 9/11 to aid law enforcement with information sharing and collaboration (www.wapo.st/29jXqSC). "The government's contention that their business was a scam defies reality," Sarokin told the Post. "All the proof in the case goes the opposite way," added Sarokin.
Trial records show Judge Arguello refused to dismiss the case when the government's own witnesses exposed the charges in the indictment as fraudulent and proved the IRP6 were innocent (Details at http://bit.ly/2D01PXC
Be on the lookout for "Federal Judges Behaving Badly (Part 2)" to see how court records expose these officials' blatant violation of a federal statute and the IRP6's 6th Amendment rights.